Wade Clark Mulcahy LLP

(Pardon the blatant pun in the title of this post.  But Trivial Pursuit is a great game, and it deserved a reference.)

It is rare, in premises liability matters, that a defendant is successful in winning summary judgment on the basis of a defect being trivial, and therefore, unactionable. In <a href="https://www.wcmlaw.com/wp-content/uploads/2019/04/Charnov20v.20NYC20Board20of20Ed..pdf"><em>Charnov v. NYCBoard of Ed.</em></a>, decided on April 1, 2019 by the Appellate Division, First Department, summary judgment in favor of the defendants’ was affirmed.

The plaintiff allegedly tripped and fell due to a missing tile on the floor of a school owned and operated by the New York City Board of Education. The day after the accident, the floor tile was fixed by the defendant janitorial company hired by the City to maintain the area.

Plaintiff testified that the the missing tile was present at the school for at least four months and that she saw, and was able to avoid it, daily. While plaintiff may have thought she was sinking the defendants on constructive notice, she actually provided them with evidence to support the claim that the defect itself was trivial, and as such not actionable. The Court agreed.

The Court found that the defect, which measured 1/8 an inch by experts during the discovery process, was trivial and in it of itself not dangerous, and as such, was not actionable. (The experts who inspected the property removed one of the tiles to measure the depth between the tile and the concrete floor underneath). The Court determined this when considering not only the actual depth of the defect, but plaintiff’s testimony in that she was able to avoid incident while walking in the same area every day for months. Pursuant to the Court, plaintiff’s only chance at overcoming the trivial defect decision was to show that the defects intrinsic characteristics or the surrounding circumstances magnified the dangers it posed and unreasonably imperiled her safety on the day of her accident.

Plaintiff was unable to show that there was anything out of the ordinary on the date of the accident to increase the dangers, and testified thoroughly about how she saw the defect on the date of the accident, like all the prior days, but that on this one occasion it caused her to fall. The Court found this unveiling and affirmed summary judgment in favor of the defendants.

This case is an example of when plaintiff’s testimony, which on its face may seem to bury the defendants, can have unintended consequences. While trivial defects are hard to prove, this decision shows that if you are able to prove it, the trivial nature of the defect can and will overcome a finding of negligence, even if that defect was present for an extended period of time.  Thanks to Dana Purcaro for her contribution to this post.  Please email <a href="mailto:bgibbons@wcmlaw.com">Brian Gibbons</a> with any questions.

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